An NBA-Sized Foot in Your Mouth

Jeffrey Kessler is one of the most decorated sports lawyers in the nation. He has represented clients related to just about every major league. It came as no surprise that the National Basketball Players Association (NBPA) chose such veteran talent for their labor talks. Last week, however, he made a rookie mistake. After hours of negotiation, Kessler told a newspaper that the owners were treating the players like “plantation workers.” Expectedly, Kessler apologized for his statement and assured that he “was merely passionately advocating for the players.” While we at the Legal Blitz have no reason to doubt that Kessler was genuine in his apology, we decided nevertheless to explore the question: “What are the consequences when an attorney makes a foolish statement related to a pending case in the course of representing a client?”

To assist us with answering that question, we called in legal ethics extraordinaire Thomas Farnish, who is a partner at Larrimore & Farnish, LLP and serves on the Professional Guidance Committee and the Professional Responsibility Committee of the Philadelphia Bar Association. Mr. Farnish is also a BarBri lecturer for the Multistate Professional Responsibility Examination.

Thomas S. Farnish, Esq.

Each state has its own ethics code, but most resemble the Model Rules of Professional Conduct published by the American Bar Association. Is there a specific Model Rule that speaks to the question above?

Advocates are supposed to relate to each other with a respectful and cooperative attitude marked by civility consistent with the responsibility to their clients. Lawyers also should treat all participants in a proceeding with such respect and cooperativeness. Certain conduct toward other participants is prohibited and includes: physical force or threat; ethnic; racial; or gender based slurs; and reckless charges of wrongdoing. SeeModel Rule 8.4 (d), cmt (3); Restatement section 106, cmt d.

In the aftermath of Kessler’s statements, NBA Commissioner David Stern said that “Kessler’s agenda is always to inflame and not to make a deal. … He has been the single most divisive force in our negotiations and it doesn’t surprise me he would rant and not talk about specifics. Kessler’s conduct is routinely despicable.” If the players’ union suffers a quantifiable loss as a result of Kessler’s statements, does the union have a remedy at law against him?

The theory of a lawsuit may be based upon the violation of an ethical rule. However, in this instance I think it would be quite difficult for the players’ association to show that they were some how damaged by the remarks of counsel. Kessler’s remarks may have been a deliberate ploy on his part to draw attention to the owners’ negotiation tactics and exert pressure on the owners to meet the players’ demands.

Even if the union elects not to pursue a civil remedy against Kessler, is he still potentially subject to disciplinary action?

It is very unlikely that any disciplinary action will be taken against Mr. Kessler. If no agreement is reached and the season is lost and the players conclude that it is partially due to Mr. Kessler’s behavior they may wish to find new counsel, but no other penalties will be forthcoming.

Is there any argument that Kessler breached his duty of loyalty to his client or that he was not diligent in his representation?

No, I do not think so. Mr. Kessler’s explanation for the remark that he was passionately representing his clients’ interests negates any argument of lack of loyalty. The requirement of competence and preparation pursuant to the requirements of Model Rule 1.1 are not in doubt. It is Mr. Kessler’s behavior and tactics that are being questioned by David Stern.

The NBA lockout is obviously a highly publicized case in which media and fans expect to be kept up to date on the status of negotiations. This essentially requires comments by attorneys. How is the line drawn as to what is appropriate to discuss in such a media frenzy?

What a lawyer reveals for public knowledge depends upon the case. Public opinion and public pressure are many times encouraged in contract negotiations. Unions involved in contract negotiations will sometimes run radio and TV ads in support of their position hoping to drum up public sentiment for their cause. Criminal investigations and/or criminal prosecutions (such as the PSU situation) however, are governed by Model Rule 3.8. This rule prohibits a prosecutor from making any extrajudicial statements that have “substantial likelihood of heightening public condemnation of the accused.”

In the current Penn State scandal, Jerry Sandusky’s lawyer essentially admitted to the media that his client had showered with young boys and “horsed around,” though no further sexual misconduct was involved. Model Rule 3.6 covering trial publicity prohibits a lawyer’s communication with the media that “will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Might the comments made by Sandusky’s lawyer violate this rule?

I don’t think Sandusky’s lawyer violated Rule 3.6. Rule 3.6 (c) permits a lawyer to make statements that are necessary to mitigate recent adverse publicity or the undue prejudicial effect of recent publicity on the lawyer’s client. I think its fair to say that Sandusky has had his share of adverse publicity lately.